Employment law briefing: Trade Union recognition

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Peter Done, Managing Director of employment law firm, Peninsula explains the fundamentals of Trade Union recognition in plain english.

An employer 'recognises' a trade union when there is an agreement that the trade union can negotiate with the employer on pay and other terms and conditions of employment on behalf of a group of workers (known as a bargaining unit).

This process is known as collective bargaining. Trade unions will usually seek to enter into a voluntary recognition agreement with an employer. However, where the employer rejects such an approach, there is a complex statutory process that an independent trade union can use to try to force the issue, provided that the employer has more than 20 workers.

If an employer will not agree to a formal request, a trade union can apply to the Central Arbitration Committee (CAC) for a declaration requiring an employer to recognise the union as entitled to conduct collective bargaining in respect of pay, hours and holidays on behalf of the workers in an 'appropriate bargaining unit'.

At least 10% of workers in the bargaining unit must be members of the trade union and the union must be likely to attract majority support in a ballot.

The CAC will only issue a declaration where either a majority of workers in the bargaining unit already belong to the union (automatic recognition) or the union wins majority support for recognition in a secret ballot of all workers in the bargaining unit (and that majority constitutes at least 40% of those entitled to vote).

There are various obligations on an employer to supply information to the trade union and to allow the trade union access to workers during the statutory processes. There are also provisions that prohibit intimidation of workers and improper campaigning activity.

In those cases where the CAC does issue a declaration, the next step is for the union and the employer to agree a method of collective bargaining. If the parties are unable to agree, one or other may apply to the CAC to impose a method.

Legislation defines a specified method of collective bargaining that the CAC must take into account and employers are under a duty to disclose information to the trade union for collective bargaining purposes in accordance with the legislation and the relevant statutory Code of Practice.

Statutory recognition will normally last for a minimum of three years and cannot be ended unilaterally by the employer, even after the end of that period, except through one of the de-recognition procedures.

Sometimes a trade union may invoke the statutory recognition procedure but abandon it prematurely because the employer agrees to recognise the union voluntarily. If the parties' agreement satisfies the qualifying conditions of an agreement for recognition, either side will still have the right to apply to the CAC to impose a method of collective bargaining.

An agreement for recognition cannot be terminated by the employer for three years. However, unlike statutory recognition, the employer does not need to follow any special de-recognition procedure to bring it to an end.

The parties or the CAC can select a new bargaining unit if changes to the employer's business mean that the original bargaining unit is no longer appropriate.

De-recognition represents the process by which an employer ceases to accept a trade union and is entitled to act on behalf of a particular bargaining unit. An employer can de-recognise a union if his workforce has fallen below 21.

The employer, or the workers themselves, are permitted to apply to the CAC to hold a secret ballot on whether the union should now be de-recognised; once again, the margin of victory is set at a majority of those voting and 40% of those entitled to vote in the bargaining unit. Where the CAC is satisfied that the employer is entitled (or required) to de-recognise the union, it will issue a declaration bringing the bargaining arrangements to an end.

The above are subject to the provision that neither the employer nor the workers may apply for the union to be de-recognised until a period of three years has passed since the CAC's declaration of statutory recognition.

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